ILLEGALS AND WAL-MART SITUATION

FOLKS: It continues to amaze me at the legal issues surrounding the 1.6 million illegals supposedly working in our communities without authorization. Yesterday in my travels I was listening to the National Public Radio and I learned that Wal-Mart and Contractor are jointly being sued for discrimination under Title VII.

As in one of my previous post on this subject, I was told that the courts had decided that "illegals have no legal status under our laws and are not protected by nor included in the protected class of National Origin".

Again, who do we trust? I am sitting here with 10 confessed illegals (now 9, one quit on his own)that we are prepared to keep, if our applications for change in status is approved. However, we were also prepared to cancel our employer/employee relationships, if we could not get this issue solved by January 1, 2004. $5000.00 a day per individual times the number of days we have been aware of our employee's illegal status amounts to way to may 000000.00s for my wallet to handle!!

Now,with the NPR news item, I'm back to "Who do we trust, the Regional Director of Workforce Development (DOL), who tells me the illegal worker has no legal status, or the real law suit against the biggest retailer in the world for the termination of illegal workers"? I sure hope they don't entertain a settlement action.

OH WHAT A MESS!!! I have sought Divine Wisdom & Guidance on this issue, but I have nothing but peace of mind to, stay the course for now! It sure would be nice to have our HRero "trusted attorney" speak up to these issues. Floating around in our HR cyber space is fun but also educational and is why I encouraged our company to remain a member of this forum.

PORK

Comments

  • 30 Comments sorted by Votes Date Added
  • Wal-mart is not being sued for terminating illegal workers. The class action lawsuit charges that the illegal workers either were not paid the minimum wage and/or they never collected time and a half for working over 40 hours. The federal government is continuing it's investigation into Wal-mart.
  • I hope you are right, it was a quick news "birp" and I must have missed that part. However, if an illegal has no status under the law, then why would FLSA be any different? The right to use one federal should be equally applied to all Federal Laws. Again I remain amaxed!

    PORK

  • I had understood that Walmart was being sued for knowing that the janitorial service they contracted with knowingly hires illegal aliens.

    Elizabeth
  • I hope the suit gets thrown out. I am so tired of illegals suing for anything!!!! I am not a huge fan of Wal-Mart, however this gets old.
    My $0.02 worth.
    DJ The Balloonman
  • the simple answer is that an employer is not permitted to employ a person without legal status to work in the U.S. if you find you have such a person on your payroll, they should be given a "resonable" time to produce documents showing eligibility. lawsuits arise when there is a "big fish" to sue or when employers terminate immediately without giving the reasonable time to produce evidence of eligibility. this issue got to the courts a few years ago when the NLRB found that illegal aliens were fired for union activity and ordered reinstatement and backpay. the supreme court found the firings were illegal but held no reinstatement and limited the amount of backpay unless the employee was eligible to work.
    Peyton Irby
    Editor, Mississippi Employment Law Letter
    Watkins Ludlam Winter & Stennis, P.A.
    (601) 949-4810
    [email]pirby@watkinsludlam.com[/email]
  • Pork:

    You might want to know that there is immigration policy rationale for having illegals eligible for some of the protections of FLSA. And it is not to provide a benefit to illegal workers.

    If firms are able to hire illegals, systematically underpay them, and then have no consequences when caught, those firms have (and used to have) an incentive to risk such hires. Similarly with OSHA protections, etc.

    That incentive is removed when employers have to, e.g., pay past-due overtime and penalties, even as the former employees are deported. Employers who might otherwise walk at or over the line of good immigration practices have one less reason to do so, one more reason to make certain they hire legitimate workers.

    Regards,

    Steve Mac

    Steve McElfresh, PhD
    Principal & Founder
    HR Futures
    408.605.1870
  • Thanks to both of you for your guidance!

    Is it clear to you then, that if an employer has proceeded in good faith to support, abide, and use the Federal Laws, appropriately, that the courts have set precedence or case law that otherwise, says an illegal foreign national has no legal status to use our laws to get us into a pinch and force a settlement as opposed to trial?

    For instance Wal-Mart, who is a giant that is slowly eating away at a very large base of our economy, but they are a representation of all of us in some form of business as one who is under attack from a "class action suit" supporting a given set of illegals, who are guided by a given set of your "brethen and looking for a settlement".

    I agree, if one is guilty and doing wrong as a employer toward the employee, we should be held accountable for our actions regardless of the status of the person, even as they are being escorted to the borders. What does this action say to us? Stay within the boundaries of our laws and we'll be ok! Or, another settlement action like Tobacco, oil, and many others, the attorneys win again.

    PORK
  • Here is a web connection with the story on the illegal immigrants if I didn't put the link in right it is on the MSNBC web page business section. I can't imagine how anyone who is not legally allowed to work could go back and sue for unpaid overtime??????

    [url]http://www.msnbc.com/news/991277.asp?0si=-[/url]
  • Like the attorneys stated one, who is operating illegally should not be allowed to continue these practices, in which I concurr; my problem is the ones who know the law and chasedown these civil groups in order to pursue the employer with big pockets. That should, likewise be criminal, but it is not. Who knows only a trial will determine if they have a right; and it will most likely never get there.

    PORK
  • Here it is in black and white. Straight from the CA Labor Code, this is just a portion of what it states regarding immigration status....

    "The Legislature finds and declares the following:
    (a) All protections, rights, and remedies available under state
    law, except any reinstatement remedy prohibited by federal law, are
    available to all individuals regardless of immigration status who
    have applied for employment, or who are or who have been employed, in
    this state."

    I'm sure other states probably have similar verbage in their codes. CA typically sets the example on things like this.

  • Before I get slammed I am not a racist, but I am sick and tired of illegal immigrants getting into this country and thinking they have all rights to work and education as the rest of the immigrants (my grandparents included) who came here through Ellis Island. If I decided I didn't like the USA anymore and decided to move to France and mooch off their government, I do believe the French would pay my way back home. We are the only country that will take anybody for any reason. I don't care if people come to the USA for a better life, to escape whatever they want to escape or whatever - all I ask is that they do it through the correct channels and do it legally.

    Ok, the armour is on! Give it to me....
  • No objections to your comments here. It's only going to get worse before it gets better.

    It's not the immigrants that are just thinking they have the rights, it's our lawmakers that say they DO have the rights.

    What's stopping them from coming here? Nothing, and until that changes, nothing else will change. Call your state representatives.
  • PLEA FOR THE SSN ON-LINE CAPABILITY TO STOP OUR HIRING OF ILLEGAL FOREIGN NATIONALS. THEY HAVE STOPPED COMING TO OUR DOOR AND ASKING FOR APPLICATIONS BECAUSE THE WORD IS OUT, WE CHECK AND SEND THEM ON THE WAY, ADDITIONALLY, I NOTIFY THE SAME DOL, WORKFORCE DEVELOPMENT FOLKS of the latest information provided on an application that then turns into an illegal hiring action.

    Sorry, CA, Mississippi abides by the Federal Law on most employer/employee issues, thus keeping us from stepping on our own feet. Drivers license for illegals I hope never comes our way and under our new Republician Gov, I don't believe so! We will however, seek his connections to help us resolve our 9 remaining cases for our and their benefit.

    PORK
  • Hey Pork, I bet our govenor knows your govenor! :) I'm sure California's problems and concessions (overcrowding of schools, federal documents in Spanish, etc.) are coming down the pike for the Mid-South. Memphis is already hiring bi-lingual police officers and teachers so don't think the problems aren't here already. I lived in Imperial Beach, CA (2 highway exits from Mexico) for 7 years and believe me, I was a definite minority. When the grocery store and Home Depot have signs in English and Spanish (just so no ones rights are violated), you know you're in trouble. Love your comments today, Pork! You are right on!
  • [font size="1" color="#FF0000"]LAST EDITED ON 11-11-03 AT 08:48PM (CST)[/font][br][br]HRSage: If you are under the illusion that the state of California sets precedence or leads the front in advocating or formulating law in this regard, you are sadly mistaken. No state other than California has such laws. None.

    >(edit) I'm sure other states probably have >similar verbage in their codes. CA typically >sets the example on things like this.

    The above is a quote from HR Sage. That's such a hoot. California sets the example for the insanity of codified foolishnish. Where do you get the notion that 'other states probably have similar verbage'? None do!
  • Thanks for pointing that out Don. Let me clarify.
    Yes, CA is extreme with it's laws to the point of foolishness (granting illegal immigrants drivers licences is one small expample). What I meant be example (and yes it was a bad choice of words) is that what CA does now, is what other (NOT ALL) states MAY DO in the future. You're going to tell me that other states with a high immigrant population (TX,AZ,NM,NV) aren't going to cater to that immigrant population, whether it's NOW or 5 years in the future or 20 years from now? You think Politicians will care where the voters come from? Illegals can't vote, but their kids can if they are born here.
    Pork keeps mentioning 1.6 million illegals, we have more than that just in CA, thanks to our ridiculous laws! I got news for you though, there's no fence around our state, so you think they are all just going to stay here?

    Whether other states have similar verbage now is not my point. My point is that some states will have it eventually because NOTHING is being done to stop it and the Politicians only want more immigrants to come in! CA has it now because our legislature if full of bleeding hearts that want to include everybody in everything. But we are not the only state with politicians like ours. And as time goes by more and more politicians will have similar views and ideas. That's what I was trying to say. So just add "probably will have" to my above quote and that will work better. I'll go lick my wounds now, thank you. :D
  • Let me add my two cents worth: Not all the illegals that we see here in our neighborhoods are poor , some are well to do in their own homelands. They come on visitor or whatever visas and don't return home. What they say is very telling: Originally, they were genuinely willing just to visit and really go back - but after being denied entry visas by US Consulate Staff members who can hardly speak English - again and again and again. Go through a lot of effort filling out the forms plus expense, then stand in an endless line outside the Embassy, only to have the Staff barely glance at the paperwork - to say "denied"! So when finally getting a visa, these people are so upset at the PROCESS they decide to stay as illegals. We as a nation have a problem in our Consulates abroad !

    Chari

  • The very first confession we received was from a Einreque Sanchez, he is no longer employed with us and left the state because he could not get a Mississippi Driver's license. He went to North Carolina where he was able to obtain a driver's license. We cancelled our support of his application, He was a documented PHD from Honduras, a quality person, that had paid to our consul staff (an individual, who has since been terminated and convicted of fraud)$1500.00 to get his legal papers which were illegal. He had perfect papers with the exception of SSN/NAME. ENRIQUE SANCHEZ, A MEXICIAN CITIZEN IS DEAD.

    Let us press for the Social Security Administration ON-LINE VERIFICATION SYSTEM for all employers even small businesses. The sooner the better, we have literally become "BLACK-BALLED" in the local communities by the hispanic community because they know we check. The 1.6 million is a figure which was provided to me by the Regional Director, I could have have failed to understand the figure, only pertained to his region around Atlanta.

    Everyone should be on your toes for this issue and try not to be personally involved with the issue. Our employees are all hard workers who pay our taxes and never go for a refund. You guys/girls PROFESSIONAL HRs in CA should push your new governor to get on-board with THIS ISSUE
    HIS DIRECT LINK TO PRESIDENT BUSH COULD BE VERY USEFUL. We in Mississippi are doing the same thing with our new governor and his direct link to the President. It would be good if the two could be pushing the same agenda.

    PORK
  • Would many of the illegals come here if they knew for sure there was no benefit attached (i.e. jobs). As long as there are people who are willing to hire illegals, they will continue to come because life is better here.
  • WHATEVER, NY: You are so right, thus the need for a processing requirement to literally check the SSA basic data for SSN's regardless of any other government document. The filter has got to be the SSN/NAME assignment. It is so easy to turn an applicant with incorrect name and SSN away from our doors, politely with our on-line check.

    Without this match there is no step to the next level. Good luck everyone!

    PORK
  • [font size="1" color="#FF0000"]LAST EDITED ON 11-12-03 AT 04:19PM (CST)[/font][br][br]Pork - the illegals are not going to apply for a job with your company...they'll go where they are underpaid, overworked and there are deductions for taxes etc. The problem is not with the companies that obey the rules, it is with those that don't (such as is alleged at Wal-Mart).

    Several years ago there was a company in NJ that hired illegals who were told they would be paid monthly. On payday, the company would call INS and tell INS that they just discovered that their ees were illegal. INS would go down, arrest the ees (before they could be paid) and deport them. Then INS got smart and got the illegal ees their paychecks, took them to the bank and then deported them. The company cleaned up their act.
  • WHATEVER,NY: Believe me Wal-Mart may have not watched their contractor that close, maybe they should have, but they most likely chose not to oversee ever aspect of the janitorial services contractor. On the other hand, I bet you will not find any illegal known to be illegal working in any store. Heck, I have not checked our janitorial contractor either and i'm not worried about it either. We also have contractor "loaders" the most difficult and physical demanding dirty job in our business, they load hogs at 1:00AM to 10AM Monday through Friday, they fall down on the ramps covered in manure for .07 a head day in and day out. We load about 11,000 sows a week to market,you do the math not bad pay, but you see how many US citizens are willing to get out there and do this work! We have two left in a team of 8. We could not get our citizens to become herdsmen/women!
    I choose not to bash Wal-Mart, when my butt is up the flag pole. They are working a lot of people and I'm sure since "Sam is dead", there are lots of senior managers making grand money, if they are doing wrong they'll get caught and rightfully so. But, who am I to judge.

    PORK
  • I agree, there are jobs Americans won't do. Our cleaning staff is made up of only aliens (but they are all legal). The problem is that many companies take advantage of illegal aliens (who are afraid of being deported) by underpaying them etc. Here, there have been raids on company supplied housing (windowless basements with people sharing mattresses on a floor) and on sweatshops. At both our facilities, we have people coming to our door looking for work and offering to work for $3 per hour. I would like to believe that businesses should be moral (however, I recognize there is a real world out there).
  • NEWS FLASH! Hello......Is anyone out there actually listening and observing what has been going on for years in the manufacturing and labor arenas?

    This stuff is not news! It has been going on for years and will continue to do so. Our very own culture creates this demand. For example, most of us faint at the thought of paying $20 for a screwdriver (or whatever), made by good-ole union labor in the USA. So, we go to Walmart and find one for $2.50 but then SCREAM because it's made in Taiwan! So now we threaten to boycott whomever the manufacturer is until they start manufacturing screwdrivers with the cute "American Pride-Made in the USA" (by Juan Garcia earning minimum wage on a fake SSN) sticker YET WE, AS AMERICANS ARE NOT WILLING TO PAY THE COSTS ASSOCIATED WITH TAKING A PRODUCT TO MARKET MADE BY AMERICANS earning what they feel is a decent wage. Hmmmmmmm! SHOCKER!

    So, I am not taking sides on this debate. I will say this: If you think our gov't doesn't look the other way more often than not, think again. Entire cities across the USA depend on legal and illegal labor to thrive.

    The reason Wal-Mart got slammed is because they got greedy. They were using contractors who were probably using either 1099 or cash labor for which no tax is ever collected. At least the illegals on W2's get withheld.

    PORK and others who believe that the SSN verification is the cure-all, here's another revelation: In TN, illegals buy legit social security cards and then get matching DL's or other form of ID to match the name. PRESTO! Let's see the SSN verification red-flag that.

    The reality of all this is that this is a socio-economic problem that also encompasses other areas. It cannot, and will not, be fixed by simply shutting down borders or implementing silly telephone or on-line verification systems.
  • TN HR: Unless the illegal foreign national is purchasing a name and ligit SSN, which I seriously doubt, the on-line and telephone system does work. At least it is a start. You should be so wise, to announce your full and complete understanding of our world as "old news". My company is on-line and I've used the telephone system it works; from direct experience we have not had any illegal foreign national get into our company. That is new news! At first, we had a few that tried and were turned away. They no longer try because they know we check and immediately notify the State of Mississippi Workforce Agent, who notifys the old INS(Don't know their new name!). We have even caught US Citizens with wrong information, mistakes to happen because we are human and we live by the computer data base. All of us must assist our government in the control of data in the data base, a very large task, but we must help or become like you, "a doubting Thomas".

    This forum is an educational tool for HRs across the democratic "world of work". If things on this forum work for you, then "suck upon it", if it does not then don't bother us with your "doubting Thomas Attitude"!!

    JAMES, it looks like we have reached a point of deminishing returns of value and you should seal this thread off. Or at least send me an e-mail which will tell me how to shut off the "gong" button with every posting!

    PORK
  • [font size="1" color="#FF0000"]LAST EDITED ON 11-14-03 AT 01:46PM (CST)[/font][br][br]GONG! Sorry Pork. x:D

    One last thing to add that I thought Pork would mention. The SSA verification does more than just match the name and SSN. It must also match the gender and DOB.
    So if the person gets a legit SS Card and number, yes they can still get other valid documents to match, but they would also need to know the gender and more importantly the DOB of the person that the SSN really belongs to.
    In essense it would be a complete theft of identity, which does happen every day. Which is all the more reason why we as a public need to be more aware of who has access to our information.

  • Hi TN HR - the telephone system does work. Please try it - it could change your mind from 'silly' to 'wow, it works'. I agree with your statements about Americans wanting cheaper and cheaper goods & how manufacturers in America are increasingly turning towards immigrant labor as a means of reducing labor costs to affect bottom line costs to the customer. That being said, we, as HR professionals and others involved with hiring, are legally bound to ensure our hiring practices follow the law. I can't control what other companies do, but I can control what mine does & any company I go to in the future. This forum is an excellent tool for educating folks on the various means they have at their disposal for effective hiring practices. Just my two cents on your post.
  • Your 2 cents well appreciated, Where is the exit button to the "Gong"?

    I started this discussion and I've heard enough. HR in TN get ready for the whooooopping the DAWGs from Mississippi are going to give the "Coon Hounds" tomorrow. May we all have a Blessed day today and a whole and complete week-end.

    Want be here next week got 5 "hearings to deal with which is what this HR gets paid to do: Un-employment, (3)false W/C claims, Monday, Tuesday, and Wed. One may get settled prior to the presentation, which is set to be very favorable in our behalf.

    Don't post after this thread if you are writing to me, my computer is off and the gong may go off but I want here it. I'll be back late in the week, but not on this thread.

    PORK
  • Pork: News Flash Number Two: Once you check the little box at the bottom indicating you would like to be contacted when others post a response to this item, you will forever continue to get those messages. The only way to stop that is to NOT check the little box at the bottom.

    TN HR: Your last post sounded a bit like the stage of seven Democratic Presidential Wannabees. All of them can lambast the status quo till doomsday, but none of them has anything to offer in the way of real solutions. Just because there are flaws in the system and jobs to be had by illegals is no reason to not police our borders. Nor are those facts good reasons to give up on the system of controlling who works in our country. The system in Mexico works. They don't allow illegal aliens down there. Unemployed Americans in Texas cannot cross the border and work at one of the plants that has left Mississippi for Mexico. As backwards as that place is, it seems to work for them. Primarily because they police their borders. Just because I will certainly get a cold this winter is no reason for me to go barefoot in the snow. There are other reasons. And there are other reasons to patrol our borders and inforce our immigration laws. The SSN match system is just one tool, but the best we have, so-far. Probably the best way to make it work is to do whatever the opposite is of what California does. x:-)

    I don't hold out Pork's hope that Miss State will whip TN tomorrow, although I do have on my denim shirt with the bulldog emblem on it. On a related note; they've decided to combine the football teams at Ole Miss, Miss State and Southern Miss next year. They'll use Ole Miss' offense, Southern's Defense, and State's bus.
  • AND STATE'S BUS WILL BREAK DOWN HALF WAY THERE! HAVE WILL CATCH "THUMB RIDES" TO TENN AND THE OTHER RETURNED HOME TODAY.

    BLESSED BE THE GONG SHOW!

    pork
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